Silveira

Order; Dissent by Judge PREGERSON; Dissent by Judge KOZINSKI; Dissent by Judge KLEINFELD; Dissent by Judge GOULD.

ORDER

A majority of the panel has voted to deny the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied.

dissenting from the denial of rehearing en banc:

I agree with the panel’s decision to uphold California’s Assault Weapons Control Act. But I part from the panel’s Second Amendment analysis. The right to keep and bear arms is in no way absolute; it is subject to reasonable restrictions such as those embedded in the statute the California legislature enacted. However, the panel misses the mark by interpreting the Second Amendment right to keep and bear arms as a collective right, rather than as an individual right. Because the panel’s decision abrogates a constitutional right, this case should have been reheard en banc.

GOULD, Circuit Judge,

dissenting from denial of rehearing en banc:

The error of Hickman v. Block, 81 F.3d 98 (9th Cir.1996), is repeated once again, thus I respectfully dissent from denial of rehearing en banc for the reasons stated in my concurring opinion in Nordyke v. King, 319 F.3d 1185, 1192-98 (9th Cir.2003) (Gould, J., specially concurring). As I there explained, restricting the Second Amendment to a “collective rights” view and ignoring the individual right of the people to keep and bear arms is inconsistent with the Second Amendment’s language, structure, and purposes, and weakens our Nation against recurrent internal and external threats that may undermine individual liberty. See also United States v. Emerson, 270 F.3d 203 (5th Cir.2001).

dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or ... the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like…

dissenting from denial of rehearing en banc:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, 1 and with the Fifth Circuit’s opinion in United States v. Emer son, 2 both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” 3 and “does not confer an individual right to own or possess arms.” 4 The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment *571 affords only a collective right,” 5 an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights,…